Washminster

Friday, 30 September 2011

Below is a MindMap on the key Treaty Articles on EU Competition Law. The numbering of the Articles has now changed (all that memorising numbers when I studied the subject at undergraduate level - lost!!!).

A brief summary of the law (with links!) can be found on the European Commission website - here.

Thursday, 29 September 2011

To understand how a country is run - it's useful to have a clear picture of the main institutions of the State. In most countries, institutions serve the different functions of government. The analysis of the work of government into making law (Legislative Function); carrying out the administration of government - delivering services & providing internal and external security (Executive Function); and judging on the interpretation of law and dealing with legal disputes and judging whether there has been a breach of the criminal law (Judicial Function) - can be traced back to Ancient Greece.

The MindMap below stresses the main features of the UK State Institutions. Remember that many functions have been devolved to institutions serving Wales; Scotland and Northern Ireland.

Wednesday, 28 September 2011

The same words mean very different things in the UK and the USA. In the USA Judicial Review is the process by which the Supreme Court can declare an executive act OR a piece of legislation - passed by the two Houses of Congress - and signed by the President - to be unconstitutional - and of no legal effect.

In the UK Judicial Review is more modest. It allows the Courts to review decisions made by public bodies (the Courts will consider not the form of the person or body taking the decision, but whether the powers exercised are of a sufficiently public nature.) They cannot strike down decisions made by Parliament (particularly Laws passed! - a principle deriving from the doctrine of Parliamentary Sovereignty).

The "GCHQ case" gave up the "Diplock Criteria" - a threefold classification of grounds for Judicial Review.

Illrgality

Irrationality

Procedural Impropriety

Subsequently the UK passed the Human Rights Act 1998 which allows the Courts to review decisions which breach the European Convention of Human Rights.

it is important to remember that the Courts often attach labels to the most frequent types of decision which can be challenged - so look for for (in textbooks; and in law reports) such as -

"ultra vires"; "irrelevant considerations"; "improper purpose"; "error of law"; "unauthorised delegation"; "fettering discretion"; "failure to perform a statutory duty"; "breach of natural justice"; "the rule against bias"; "the right to a fair hearing"...

Tuesday, 27 September 2011

An important issue in UK Constitutional Law is the concept and doctrine of Parliamentary Sovereignty. As ever an outline MindMap (for developing further!!!) is set out below.

The important things to be able to do are to - describe and explain the doctrine; give examples of how it works in practice; and to critically evaluate the claims of Dicey; his supporters and those who have challenged him. This is an important point - describing is a lower level skill; explaining shows that you understand and can communicate that understanding; the use of examples is evidence of your ability to use relevant materials - and again shows a depth of understanding. But "critical evaluation" demonstrates the highest level of thinking. Lawyers need to be able to challenge - putting forward arguments to support a proposition - and anticipating (and responding to) opposing arguments.

Monday, 26 September 2011

In England, judging has not been confined to the professionals. Ordinary people play a key role - and many people regard that as an important protection for liberty. Without their involvement justice would be administered solely by State Officials.

The two key areas involving non-State employees are

(1) in Magistrates Courts, where the norm is to have a bench of three lay magistrates hearing trials of summary offences (and who also may hear "triable either way" cases). All criminal cases start in Magistrates Courts - though indictable cases, and those "triable either way" where it is felt more appropriate to be heard in the Crown Court (a defendant may demand his right to a jury trial) - begin (usually only briefly) in the Magistrates Courts.

(2) in Crown Courts, where the decision on whether the defendant is found guilty or non-guilty, is given to a jury.

It is useful to be able to outline the qualifications/disqualifications for being a lay magistrate or a member of the jury. But it is just as, if not more, important to be able to discuss the advantages and disadvantages of each type of lay involvement.

In previous posts I have included MindMaps - can I invite you to prepare your own MindMaps with the key points for each side of the argument. Do add pictures - and if you scan them in and send them to me , I will seek to publish them in a later post. This post from 2009 may be of some use to you.

Friday, 23 September 2011

This weekend the Party leadership, MPs & Peers, delegates and other party members will be meeting in Liverpool for the annual Labour Party Conference. Sadly this year, I won't be joining them - (but next year I will!). So, if you too can't make - join me in following it from afar.

As with all the other major conference there will be live coverage on BBC Parliament. The conference website can be accessed here.

The official party twitter feed can be found at http://twitter.com/#!/UKLabour, but there will be plenty of tweeting going on from individual attendees.

Thursday, 22 September 2011

It's important to be able to describe - and give examples of the sources of constitutional law. While Britain doesn't have a single document (though life for US Law students is little easier - they still need to remember the key cases; and the law - created under the authority of the Constitution- which governs the workings and relationships of the institutions - and the rights of citizens).

Below is yet another MindMap - again a useful starting point - either for an extended single map - or for new maps specific to the headings of this Master MindMap.

Definitions are again important - don't forget the classic definition of a "convention" - "rules of constitutional behaviour which are CONSIDERED TO BE BINDING by and upon those who operate the Constitution (the Monarch; Ministers; MPs & Peers; judges...) but which are NOT ENFORCED BY THE LAW COURTS"

Examples and legal authorities are important too (the quote above comes from Marshall & Moodie). A review of constitutional history can be a useful preparation for a constitutional law exam!

Monday, 19 September 2011

The MindMap below highlights the key (indeed CORE) principles which underlie the UK Constitution. If you ever need to describe the UK Constitution - these are ideas which you need to explain.

Most textbooks will set out a definition; some authorities; some examples illustrating the application of the principle. You could use this MindMap as a starting point for your own larger MindMap (great for revision purposes) - make sure that you add a brief definition (better to put it in your own words than try to memorise a quote from someone else) plus a handful of key cases and examples.

Dicey was a genius at highlighting the key ideas in such doctrines. He is summarised in many textbooks - and his book "Introduction to the study of The Law of the Constitution" is worth a read - even if it's a skim read to get you "fit" prior to an exam.

A more recent book - which can be read in a few hours - and is both readable AND full of useful definitions and modern examples is the late Lord Bingham's "The Rule of Law"

Sunday, 18 September 2011

George Washington laid the cornerstone of the Capitol Building in Washington DC. It was far from complete by the time that Congress moved in 1800. There are some excellent guides to the history and architecture of the Capitol - my favourite (which I keep by my bedside for a little late night or early morning reading) is William C Allen's "History of the United States Capitol: A chronicle of design, construction, and politics"

It is available in the gift shop in the Capitol Visitors Center, Washington DC - but I wouldn't recommend flying with it (unless you want to use up quite a bit of your baggage allowance!).

Online there is some excellent material on the website of the Architect of the Capitol - available here.

Saturday, 17 September 2011

In the almost 5 years that this blog has been running - I have writen a number of articles that may be of use to my W200 law students - particularly when, as now, it is time for exam revision. There are a number of ways that this blog can be used

1 search for a particular word or phrase using the "Search this Blog" app to the right.

Thursday, 15 September 2011

Thursdays, at this point in the session, are given over to debates in the Lords. This week it is the turn for Labour Peers to put down a subject for debate Baroness Wheelerto call attention to the extent of the implementation of the recommendations of the NHS Future Forum in the Health and Social Care Bill; and to move for papers.

Lord Mynersto call attention to the report of the Independent Commission on Banking; and to move for papers.

There will also be a short debate initiated by Lord Hylton (a Crossbencher) on his question "to ask Her Majesty’s Government what is their assessment of the current situation in Kosovo."

The House sits at 11.00am - and there will be thirty minutes of questions.

Wednesday, 14 September 2011

There are many different constitutions. Some are short and deal with only the most basic points for governing a country - others are long and very detailed. The MindMap below (click on it to increase its size) highlights some of the key ways of distinguishing constitutions.

The first is Written/Unwritten - a misnomer because most constitutional rules are written down in one place or another. The term "Written Constitution" applies to ones where there is a single document setting out the rules. However, don't be fooled - it may have supplementary sources which define and explain it. For example you couldn't fully understand or apply the US Constitution without referring to caselaw; more detailed laws putting the flesh on the Constitution; and relevant commentaries. The UK Constitution is not found in a single document - but in statute (Magna Carta 1215 - yes a statute! and a tiny bit still remains in the original source; Bill of Rights 1689; Act of Settlement 1701...European Communities Act 1972; Human Rights Act 1998; Constitutional Reform Act 2005.... why not construct your own list of "Constitutional Statutes, it's a useful list to have); caselaw (similarly a list of key cases may be useful - have a think about what you would include in a 'top twenty'); and conventions.

Flexible/Rigid can also be misleading. In theory the UK Constitution is very flexible - conventions can develop and die; Parliament can change ANY rule - no need for special majorities or an extraordinary procedure. Yet it has changed less than some of the more "Rigid" constitutions that make changes very complex and difficult to achieve.

Make sure that you are familiar with the other terms - and I'm happy to answer specific questions - email me here.

Two terms to be careful with - illegal and unconstitutional - they are not the same (they might be in the right circumstances). In the UK an act may be unconstitutional (perhaps a Statute offends against one of the key features of the constitional framework - but that won't make it illegal. Where a court can strike down a law or action for conflicting with a Constitutional rule - then it can be described as illegal.

Tuesday, 13 September 2011

Where does law come from in England? There are a number of sources - each having different weight (the doctrine of 'Parliamentary Sovereignty' is relevant here - it explains why - in a conflict between case law and legislation - it is the Act of Parliament which prevails).

Legislation - law made by, or under the authority of Parliament. Where a bill is considered by both Houses of Parliament, and an agreed text is approved by both - it becomes law after the Royal Assent is given. This is PRIMARY legislation - and can be referred to as an "Act of Parliament" or a "Statute" (the terms are interchangeable). When Parliament gives authority for legal rules to be made by someone else - those rules are described as "SECONDARY or DELEGATED legislation - they may be Orders in Council; Statutory Instruments - or if the power is exercised by a local authority "by-laws".

Legislation may also be created by the European Union. Under the European Communities Act 1972 - these are recognised as valid law in England. European Union Law is in the form of Primary Law - the Treaties or secondary - Regulations and Directives. Regulations take effect without the need for further national implementation (they are 'directly applicable' - a term not to be confused with "Direct Effect" - which refers to rights arising under European Union law being given effect by the national courts - you can get a remedy by going to the local court). Directives are BINDING, as to the result to be achieved - but the national government chooses the most appropriate way of turning that legal obligation into the law of the land.

Case Law - Common Law systems place great importance of the doctrine of binding precedents. Decisions by a court on the same facts should be followed. The hierarchy of the Courts are important to this doctrine - since higher courts generally bind lower courts. Case law remains an important source of law - though it can be overriden by Parliament.

Monday, 12 September 2011

On Friday Peter Bone commenced the Second reading of his bill which is designed to expel the whips from Westminster (my Ph.D. study is safe - as historically, I end the period covered by my study of whips and whipping organisations in Congress and at Westminster at December 2010). It's not going to succeed though - as evidenced by the fact that its 2nd Reading isn't completed yet - time ran out on Friday. It is a "Private Members Bill" - and only limited time is made available. If anyone wants to stop a bill being passed - all they need do is keep the discussion going until the "Moment of Interruption", at which time (unless a successful attempt is made to move closure - which requires at least 100 members voting for closure - usually difficult to achieve on a Friday), progress on the bill is adjourned - and it slips down the list. Time could be made available by the Government (as if!) or colleagues could sacrifice their precious timeslots (not ideal for winning friends and influencing people - particularly, on this issue, the Whips - who play a key role in advising on promotions!).

Congressional leaders will meet on the East front steps of the Capitol Building this evening to commemorate the 10th anniversary of 9/11.

It is expected that the Jobs Bill will be published today - and the conomy and unemployment will dominate the week in the House of Representatives. There are two special elections in Tuesday - one of which (New York's 9th District) may produce an unpleasant surprise for the President and the Democrats. It was the seat of Anthony Weiner - normally a solid Democrat seat - but opinion polls suggest a turnover).

At Westminster the Commons will today consider Lords Amendments to the Police Reform and Social Responsibility Bill (in what is referred to as "Ping-Pong). The other major piece of legislation for the Commons this week is the Energy Bill (Report & 3rd Reading). Tuesday is an Opposition Day.

In the Lords, the Localism Bill continues in its report Stage, while the Welfare Reform Bill faces its 2nd Reading on Tuesday.

The European Parliament has a Plenary session this week in Strasbourg. Some of the key issues include the Economic Crisis (debate on Wednesday); Border control; Energy Trading; Counter-terrorism and Libya/Syria. The 2012 EU Budget will be presented to the Parliament by the Polish Presidency on Wednesday. If you register with Europa Audio & Visual here you can watch live broadcasts and recorded programmes about the Parliament and the other EU institutions. (Further details here).

The French Parlement returns in October.

(and what's the significance of the picture of the Canada Goose? - None at all - it's another picture taken around the beautiful lake in Furzton)

Sunday, 11 September 2011

Ten years ago, the awful attacks were made on New York and Washington DC. When I visited the capital in February, I was taken to the memorial which has been constructed outside the Pentagon - where the body of the aeroplane came to rest. Each bench is a memorial to one of the individuals who died on the site, ten years ago today.

Saturday, 10 September 2011

If you are using an iPad to read Washminster (and other blogs and tweets) - consider using the "Flipboard" App - I don't know how they do it - but it makes reading so much more pleasant - and shows videos in a better form (see for example today's post of Francois Holland speaking in the Assemblee nationale.

The current favourite to be the Parti Socialiste candidate in next year's French Presidential Election is Francois Hollande, a former leader of the party, who is a member of the Assemblee nationale. You may have read about him - but if you haven't seen him in action (sadly British and US TV don't give much coverage to French politics) - here is your chance.

He spoke during a debate in the assemblee nationale's session last week (in effect, the Parlement was recalled to discuss the economic situation and the government's "emergency" budget)

Friday, 9 September 2011

In the Common Law systems - such as those of England & Wales and the USA - a major distinction is drawn between criminal and civil law. Some of the key differences are -

(1) Criminal Law involves the State acting against the individual. Civil Law involves a dispute between individuals (though one or more of the parties may be an artificial "individual" such as a company or a corporation - or even a State body (for example an injured citizen may sue, in civil law (the tort of negligence) the local council for injuries caused by its negligent failure to maintain a footpath).

(2) The object of criminal law is to sanction behaviour - and a breach of criminal law may lead to a punishment such as a fine or imprisonment. Civil law is about providing remedies - such as damages for a breach of contract or for injuries suffered for an accident caused through negligence. Other civil remedies include "specific performance" which involves a court order to someone to carry out the duty they undertook to perform as part of a contract; or an injunction ordering them to do, or desist from doing something. So in a sense, criminal law is 'public law', whilst civil law is 'private law'.

(3) Different Courts are involved. In general Magistrates Courts and Crown Courts deal with criminal law and Civil cases are heard in the County or High Courts. There is some overlap - Magistrates Courts have some civil jurisdiction - and the higher appeal courts - the Court of Appeal (divided into a Criminal and Civil Divisions) and the Supreme Court - deal with both.

(4) The language is different - in Criminal law a prosection is brought, and if successful the defendant is found guilty. One "sues" in civil law - and the result is a finding of liability.

(5) The parties have different names - in criminal cases we speak of the prosecution and defendant; in civil cases the claimant sues the respondent.

(6) The standard of proof is different - in civil matters it is "the balance of probabilities" whereas criminal law demands a higher standard of "beyond reasonable doubt"

(7) The rules of the "burden of proof" differ - in general the burden mainly rests upon the prosecution in criminal cases (though in certain circumstances, once particular facts are proved, the burden may shift to the defendant). In civil law the burden may be more equally shared.

(8) The State usually brings criminal prosecutions (although private prosecutions are possible for many offences). It can also halt prosecutions. As civil cases are seen as private actions - the State cannot order the halting of a civil action.

(9) Much of civil law can be said to be "voluntary" - parties can decide not to enter into obligations with each other (they can decide not to enter a contract; or agree that disputes will not be subject to court adjudication, or even decide to make disputes subject to a particular jurisdiction - look at some contracts (the 'terms and conditions' that we "agree" to, for example when signing up for a service on the internet - they may make the agreement subject to the laws of England; or New York State etc)). Liability can be ruled out - "We make no representations that information is accurate and up to date or complete and accept no liability for any loss or damage caused by inaccurate ..." [though this is now limited in certain circumstances].

Criminal law however is not voluntary - you can't opt out of it!!!!

There are other differences - can you add to this list?

One important point to make - the same act can have criminal and civil consequences. I drive carelessly, perhaps after a few glasses of champagne, and knock down the wall around your house - the police will interested in my behaviour - and may send the details to the CPS (Crown Prosecution Service) - who may decide to bring a criminal prosecution. You may sue me, in order to recover from me the costs of rebuilding the wall.

Thursday, 8 September 2011

Yesterday Eleanor Laing was given leave to introduce a Bill which would make 15th June 2015 a national holiday. It would celebrate the 800th anniversary of the signing of the Magna Carta.

The procedure used was that of a "ten minute rule bill". This is covered by Standing Order 23. On Tuesdays and Wednesdays a member is given 10 minutes (the SO actually speaks of "the Speaker, after permitting, if he thinks fit, a brief explanatory statement...) to give reasons why the House should grant leave to bring in the bill. Actually leave is not needed to bring in a bill - SO 57 says "A member may, after notice, present a bill without previously obtaining leave from the House to bring in the same". This happens very early in the day's business - and can pass almost unnoticed - and that is the point about the 10 minute rule bill procedure. It is rarely used for serious legislating - instead it gives the member an opportunity for "prime time" coverage of the issue he or she wishes to raise. It occurs straight after Questions - and of course on a Wednesday, straight after PMQs (Prime Minister' Question Time). Many 10 minute rule bills get national publicity earlier in the day.

Ms Laing's purpose was to draw attention to the campaign for a holiday to celebrate the signing of the Magna Carta. I have to say that I can not be neutral on this issue. I strongly believe that in the UK we should give more attention to this important event and document in British history. I was the co-founder of a Facebook group as far back as 2007 - "Magna Carta Day!" - do please join!

The request for leave and the subsequent First Reading can be watched at 01:01:30 onwards (you will need to move the slider to that point (although there's quite a bit to see beforehand - including a message from the Queen; PMQs; A point of order; and Introduction of a bill under the Art 57 procedure)

Wednesday, 7 September 2011

Yesterday I sat in on the Public Bill Committee which is considering the Legal Aid, Sentencing and Punishment of Offenders Bill. Unlike the dramatics of Prime Minister's Question Time, this was a workmanlike session where amendments were proposed, explained, argued for - and the Minister responded to the detailed points made - indicating whether the Government would accept the amendments; oppose them on principle; or consider changing policy or the text of the bill in response to the comments made.

This was Parliament doing (what in fact it does most of the time) what we would expect of a responsible legislature - giving detailed consideration of proposed laws - deliberating.

The text of the Bill can be found here - and the Explanatory Notes here. The amendments I watched being considered can be found here. You can listen to the session I listened to via Parliament Live.

(the French Parlement sites are available in English - from the home pages above)

Of course, the European Parliament beat everyone - returning for a committee week last Monday. The next plenary session will be held in Strasbourg on 12th - 15th September. A weekly summary of events in the European Parliament is available here, while the Draft Agenda for the September plenary is accessible here.

Sunday, 4 September 2011

In the United States a large number of appointments are subject to confirmation hearings. In the UK there is no similar requirement, but in recent years Select committees have experimented with "pre-appointment hearings". The Liaison Committee has today published a report on these hearings which says -

"we recommend a number of changes to the system as it stands.The list of posts to which the procedure applies should be refined. We propose, for the purposes of further discussion, a three-part list. Posts in the first tier are those we consider to be of sufficient constitutional significance as to require a process which is effectively a joint appointment by Government and the House of Commons. Posts in the second tier are those which we propose should be subject to an enhanced and improved version of the current process, and which should be subject to an "effective veto" by the House of Commons or its committees. For posts in the third tier we propose that a pre-appointment hearing should be at the discretion of committees.

The procedure for pre-appointment hearings should be refined to provide for:

greater consultation between Ministers and committees at the outset of the recruitment process on the definition of the post and the criteria for selection;

more information to be provided to committees in advance of hearings about the field of candidates from which the preferred candidate has been selected;a recognition that it may be appropriate for the Chair of a committee to discuss privately with a Minister any reservations the Committee may have about a candidate before issuing its report and before the Minister proceeds to a decision;a resolution of the House of Commons confirming appointments in certain cases.

It's Sunday - so instead of a post on practice & procedure in the Washminster legislatures; or a Revision article for law or politics; I am going to write something on a leisure activity. "Six Days shalt thou Labour..." - a good prescription for a healthy body and mind!

As long term readers of this blog will know (and all previous posts can be accessed - back to the first post in March 2007 - either through the search engine - or by using the list in the Blog Archive) - I particularly enjoy watching American Football; listening to jazz; reading French (yes, for relaxation!!! - I find I enjoy it more than reading English - probably because I can't go into 'speed-reading mode'); watching or listening to political comedy; learning about history or just walking or cycling.

With the end of the summer holidays (last Monday was the final bank holiday until Christmas - and schools return this week) - there's lots of ways to relax.

Jazz Matters returns to the Stables in Milton Keynes. Once a month there is a live jazz session - and twice a month a talk (with music). Dame Cleo Laine will be the next guest in the "Desert Island Discs (without the island)" series on October 2nd - for more details press here. We are very privileged in Milton Keynes to have a series of walks organised. Great for health, but also good fun and you get to learn lots (history; natural history; more about our City). Further details here.

The NFL (American Football) season kicks of this week. There are lots of websites giving further information. My favourites are NFL and of course the site of the Washington Redskins. Britbowl is only a couple of weeks away, at Crystal Place - there is a facebook group. In October there will be an NFL match played at Wembley - Tampa Bay Buccaneers play the Chicago Bears on October 23rd. More info here.

For something lighter - type in "political humour" into "Search this Blog" - and see my previous posts.

Friday, 2 September 2011

A starting point in revision is to identify the key topics that need to be covered. Below is a MindMap illustrating the key parts of the W201 The Individual & the State course.
Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that.

For Example - Units One to Five cover "Constitutional Law"

1 Fundamental Values, constitutions and core constitutional principles
2 The sources of the UK Constitution
3&4 Parliamentary supremacy
5 The institutions of State in the UK

Thursday, 1 September 2011

A starting point in revision is to identify the key topics that need to be covered. Below is a MindMap illustrating the key parts of the W200 Understanding Law course. Unit 8, on Scottish Law is not examinable - so I haven't incorporated it.

Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that.

For Example - Units One and Two make up "Introduction to Law
1 Introduction and what is law
2 Terminology and sources of Law

Each unit is subdivided - Unit One -
A General Introduction to the course - no need to revise this
B What is Law?
C The Functions of Law

Note the key themes and further divisions - B1, B2, B3.....
You might want to draw your own MindMap for each Subject and/or Unit.
Briefly summarise the key points as you revise - this involves condensing the information.

About Me

An experienced lecturer, tutor & researcher with practical experience of working in the UK and European Parliaments.
I have a keen academic and practical interest in the workings of both the UK Parliament and the US Congress.
Over the years I have broadcast on both UK & US Politics for BBC local radio stations.